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Showing 161 to 180 of 1244 Records
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2014 (8) TMI 1084 - SUPREME COURT
Workmen engaged in statutory canteens through a contractor - nature of control - whether workers, engaged on a casual or temporary basis by a contractor (HCI) to operate and run a statutory canteen, under the provisions of the Act, 1948, on the premises of a factory – Air India, can be said to be the workmen of the said factory or corporation?- liability of the principal employer running statutory canteens - status of the workmen engaged
Held that:- The mere fact that the Air India has a certain degree of control over the HCI, does not mean that the employees working in the canteen are the Air India’s employees. The Air India exercises control that is in the nature of supervision. Being the primary shareholder in the HCI and shouldering certain financial burdens such as providing with the subsidies as required by law, the Air India would be entitled to have an opinion or a say in ensuring effective utilization of resources, monetary or otherwise. The said supervision or control would appear to be merely to ensure due maintenance of standards and quality in the said canteen.
The appellants-workmen could not be said to be under the effective and absolute control of Air India. The Air India merely has control of supervision over the working of the given statutory canteen. Issues regarding appointment of the said workmen, their dismissal, payment of their salaries, etc. are within the control of the HCI. It cannot be then said that the appellants are the workmen of Air India and therefore are entitled to regularization of their services.
It would be pertinent to mention, at this stage, that there is no parity in the nature of work, mode of appointment, experience, qualifications, etc., between the regular employees of the Air India and the workers of the given canteen. Therefore, the appellants-workmen cannot be placed at the same footing as the Air India’s regular employees, and thereby claim the same benefits as bestowed upon the latter. It would also be gainsaid to note the fact that the appellants-herein made no claim or prayer against either of the other respondents, that is, the HCI or the Chefair.
Thus the workers engaged by a contractor to work in the statutory canteen of a factory would be the workers of the said factory, but only for the purposes of the Act, 1948, and not for other purposes, and further for the said workers, to be called the employees of the factory for all purposes, they would need to satisfy the test of employer-employee relationship and it must be shown that the employer exercises absolute and effective control over the said workers.
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2014 (8) TMI 1083 - ITAT KOLKATA
Addition as per disclosure made by the assessee - Held that:- We find that there is no basis for making this disclosure and thereafter addition made by AO to the returned income of the assessee as there is no corroborative or direct evidence which shows that the assessee has earned this amount of ₹ 1 cr. There is no deposit in the bank account and there is no cash or incriminating papers found during the course of search on the premises of the assessee or there is no unaccounted deposits found in the above-stated two bank accounts relating to which this income is to be declared. But the AO added the sum of ₹ 1 cr. to the returned income of the assessee on the basis of disclosure letter dated 06.05.210 filed before DDIT, Investigation, Unit 1(4), Kolkata. As there is no basis for making this addition, CIT(A) has rightly deleted the addition based on the submissions and relying on various authorities. We confirm the order of CIT(A).
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2014 (8) TMI 1082 - PUNJAB AND HARYANA HIGH COURT
Valuation of property - property jointly owned - retrospective effect of section 142A - Held that:- It was not disputed by learned counsel for the revenue that the husband of the assessee, Shri Paramjit Singh also had 25% share in the said property and in his case, the Tribunal had adjudicated the issue in his favour and accepted the valuation shown by him and the order of the Tribunal was accepted by the revenue as no further appeal was filed against it. In such circumstances, it would not be appropriate to adopt two different valuations in respect of identical shares in the same property for the same period.
A Division Bench of this Court in Jaswant Rai's case (1977 (2) TMI 22 - PUNJAB AND HARYANA High Court) noticed that where the property was jointly owned, the valuation in the case of one co-sharer should be followed in the case of other co-sharer unless different circumstances are demonstrated. Further, the Apex Court in Berger Paints India Limited's case (2004 (2) TMI 4 - SUPREME Court ) while adjudicating identical issue held if the revenue has not challenged the correctness of the law laid For Subsequent orders down by the High Court and has accepted it in the case of one assessee, then it is not open to the revenue to challenge its correctness in the case of other assessees, without just cause. - Decided against revenue
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2014 (8) TMI 1081 - SUPREME COURT
Necessity of serving show cause notice - Form and content of show cause notice required to be served, before deciding as to whether the noticee is to be blacklisted or not - Held that:- When it comes to the action of blacklisting which is termed as 'Civil Death' it would be difficult to accept the proposition that without even putting the noticee to such a contemplated action and giving him a chance to show cause as to why such an action be not taken, final order can be passed blacklisting such a person only on the premise that this is one of the actions so stated in the provisions of NIT.
No such case was set up by the respondents that by omitting to state the proposed action of blacklisting, the appellant in the show cause notice has not caused any prejudice to the appellant. Moreover, had the action of black listing being specifically proposed in the show cause notice, the appellant could have mentioned as to why such extreme penalty is not justified. It is not at all acceptable that non mentioning of proposed blacklisting in the show cause notice has not caused any prejudice to the appellant. This apart, the extreme nature of such a harsh penalty like blacklisting with severe consequences, would itself amount to causing prejudice to the appellant.
We are of the view that the impugned judgment of the High Court does not decide the issue in correct prospective. The impugned order dated 11.9.2013 passed by the respondents blacklisting the appellant without giving the appellant notice thereto, is contrary to the principles of natural justice as it was not specifically proposed and, therefore, there was no show cause notice given to this effect before taking action of blacklisting against the appellant. We, therefore, set aside and quash the impugned action of blacklisting the appellant. The appeals are allowed to this extent.
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2014 (8) TMI 1080 - ITAT KOLKATA
Undisclosed source of money - Held that:- The assessee has received over ₹ 6 crores and deposited the same in the bank account and has also withdrawn the same and given to other persons. Now the assessee is not at all prepared to divulge the names or to provide any detail whatsoever. In our considered opinion the Revenue is very much correct in treating the same as income of the assessee.
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2014 (8) TMI 1079 - CESTAT, NEW DELHI
Tax liability - service tax on renting of immovable property services - levy of penalty where bonafides are proved - Held that: - I find that Commissioner (Appeals) has fairly accepted the request that penalty invoking under section 78 of the Finance Act, 1994, was not leviable as bonafides were proved. The Ld. DR submitted that appellants contended that they were not aware about leviability of service tax on renting of immovable property services. He also pleaded that ignorance of Law cannot come to the waiver for the payment of duty. However it is fairly considered by dropping the penalty. Appellant have also complained that M/s. Nagar Palika Parishad have not been co-operating with the Department and have not provided them required information which has ultimately been collected by taking the recourse to RTI.
The penalty is rightly waived. But challenge to invocation of extended period of limitation on payment of duty due to ignorance of Law is not a valid ground. Once a service is provided and that service is taxable, tax liability has to be discharged accordingly - appeal dismissed - decided against Revenue.
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2014 (8) TMI 1078 - ITAT DELHI
Disallowance of deduction u/s 80IC - Held that:- Even in case of substantial expansion of an eligible unit claiming deduction u/s 80IC is allowable for a maximum period of 10 years from the inception. Therefore the claim of the assessee is valid in the eyes of law and is therefore is allowed. - Decided in favour of assessee.
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2014 (8) TMI 1077 - ITAT MUMBAI
Disallowance made under section 14A - Held that:- We find that the assessee had received dividend of ₹ 4,17 during the year under consideration,that on its own it had calculated the disallowance of ₹ 11,663/- u/s.14A r.w.r.8D of the Rules,that the FAA had deleted the addition of ₹ 181.95 lakhs and had confirmed the balance addition of ₹ 31.74 lacs, that the AO had filed appeal against the deleted of the disallowance whereas the assessee has challenged the order of the FAA for confirming the disallowance of ₹ 31.74 lakhs.We find that the FAA has deleted the addition because he was of the opinion that Rule 8D (2) (ii) was not properly applied by the AO. He found that interest expenses were related to the business of the assessee and not to the investment that yielded exempt income.In our opinion,no interest disallowance can be made if the assessee utilises borrowed funds for purposes other than investment.
In the matter under appeal the FAA has given a finding of fact that the assessee had borrowed loans from various banks for specific purpose like purchase of plant, machinery other assets working capital for business, purchase of raw material, packing material, stores & spares,etc,that the other interest and finance charges had also been incurred towards business of manufacturing of ready made garments, that the loans were for the specific purpose of the business,that the interest expenditure was directly related towards business income which was taxable.DR could not controvert the finding given by him. Therefore, confirming his order we decide the effective ground of appeal against the AO and hold that interest expenditure incurred by the assessee was not hit by the provisions of rule 8D (2)(ii)of the Rules. - Decided in favour of assessee.
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2014 (8) TMI 1076 - CESTAT MUMBAI
Demand – imposition of penalties – 100% EOU – misdeclaration – import of capital goods without payment of customs duty as well as procuring of indigenously without payment of duty at the time of debonding - submission of list of capital goods at the time of debonding - Held that: - as the appellants were maintaining proper records regarding the capital goods received without payment of duties from which the Revenue found out the deficiency, no merit found in the contention of the appellant that omission of the capital goods such as generating sets etc. is not deliberate – appeal dismissed – stay application dismissed.
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2014 (8) TMI 1075 - CALCUTTA HIGH COURT
Non application of provisions of Section 40(a)(ia) - whether tribunal was justified in law to direct that once profit rate is estimated further disallowance on the same books of accounts cannot be made in the Light of the provisions under Section 40(a)(ia)? - Held that:- Whether the AO can disallow the expenses which are directly related to gross receipt of the assessee on which the AO has estimated net profit by applying the rate of 8%. It is a fact that the assessee has not produced books of account, it means that the AO has not relied on books of account for estimation of profits. This fact is accepted by assessee as well as by revenue.
We are of the view that once the net profit rate is estimated the AO cannot base his disallowance on the same books of account for the purpose of disallowance by invoking the provisions of section 40(a)(ia) of the Act or general disallowance u/s 37 of the Act. The estimation made by AO of net profit will take care of every addition related to business income or business receipts and no further disallowance can be made. We see force in the argument of the assessee that when the income of the assessee was computed applying gross profit rate and no deduction was allowed in regard to the expenses claimed by the assessee, there was no need to look into the provisions of section 40(a)(ia) of the Act or section 37 of the Act. Accordingly, no disallowance could have been made in view of the above facts that once the profit is estimated by applying net profit rate. Accordingly, we direct the AO to delete the other disallowances and restrict the addition by applying Net Profit rate @8% of gross receipts. We find valid reasons given by the Tribunal in support of this order
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2014 (8) TMI 1074 - DELHI HIGH COURT
Representation by an Advocate in proceedings conducted to determine whether the petitioner is a wilful defaulter - Held that:- The idea of preventing adequate representation to the affected parties, for such disposal is unacceptable. The right to be represented by a legal advocate is not an integral part of natural justice and it is not necessary that in all cases before domestic forums, representation through a legal practitioner should be permitted. However, the courts have always leaned towards allowing representation through legal practitioners to obviate any handicap that the person may feel in representing his case. In cases where adverse decision would have serious civil and pecuniary consequences, denial of representation through a legal practitioner may in given facts be violative of natural justice. Indisputably, the consequences of holding the petitioner as a wilful defaulter would be serious for the petitioner and the petitioner ought to be afforded adequate opportunity to present its perspective on the issue.
In view, in the given facts of the case, the prayer for the petitioner to be represented by an Advocate is liable to be allowed.
The material that is relied upon by any authority in arriving at a decision must be made available to the affected party. This is an integral part of the principles of natural justice that are enshrined in Article 14 of the Constitution of India.There is no justifiable reason why the same should be departed from in the present case.
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2014 (8) TMI 1073 - CALCUTTA HIGH COURT
Refusing permission to engage advocate - Held that:- Here the proceeding is between a lender and a borrower, and a committee of the lender is to hear the borrower. The committee is not to decide any lis between the parties; nor is it to adjudicate any dispute; nor to inquire into any charge and record its findings. It is only to take a view on the appellant’s representation against proposal of the bank, based on its records related to the appellant’s loan account, to classify the appellant as a wilful defaulter.
The lender is under an obligation to detect its borrowers who are in default on loan it has sanctioned. Whether a borrower is a wilful defaulter is to be ascertained first by the bank internally through its high officials who are to scrutinise the related records for classifying the borrower concerned. A borrower when declared a wilful defaulter is bound to face the penal consequences mentioned in the MC itself.
The evident purpose of the hearing of the borrower is to ensure that the lender does not commit a mistake in identifying and classifying a borrower as a wilful defaulter. The appellant’s representation is that the bank has wrongly classified it as a wilful defaulter. The GRC of the bank supposed to examine the appellant’s case closely in the presence of the appellant that will be free to present its case over the course of hearing, is not, however, empowered to take down any evidence.
Hence in ordinary cases absence of an advocate for the hearing purpose is not likely to defeat the purpose of the hearing. In this case we do not find any reason to say that the grounds stated by the appellant for permission to engage advocate to appear before the GRC for the hearing purpose have constituted a case that absence of the service of an advocate for the hearing purpose is likely to defeat the purpose of the hearing.
We are therefore of the opinion that by refusing permission to engage advocate the bank did not commit any wrong, and that the single Judge has rightly dismissed the WP, though he has recorded a finding that the appellant is a defaulter on the loan, − not an issue in the WP, and made an assumption about the appellant’s representation ability, − an impermissible personal perception.
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2014 (8) TMI 1072 - BOMBAY HIGH COURT
Withdrawal of approval status of Institute - Position of the playground as well as no occupation certificate and faculty have been same till this date, which the Respondents failed to take note of and that resulted into the observation referring to the deficiencies. Thus, in the present facts and circumstances and in view This Order is modified/corrected by Speaking to Minutes Order dated 01/09/2014 of the above, we are inclined to observe that there were no major deficiencies when the impugned order was passed. As the deficiencies are clarified and explained and as averred removed, there is no reason to keep this Petition pending so also in view of the observation already made in order dated 14th July 2014.
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2014 (8) TMI 1071 - HIMACHAL PRADESH HIGH COURT
NDPS - It is a moot question as to whether the search and seizure conducted in terms of the provisions contained in Chapter VII of the CrPC, which contains Sections 91 to 105 read with the provisions contained in Sections 165 and 166 of the CrPC, can be made basis for quashing the investigation or quashing the search and seizure made? The answer is in the negative.
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2014 (8) TMI 1070 - RAJASTHAN HIGH COURT
Addition made on the basis of entries recorded in the books of accounts - Held that:- Tribunal was justified in confirming the deletion as against the addition made by the Assessing Officer. - Decided against revenue
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2014 (8) TMI 1069 - ITAT COCHIN
Reopening of assessment - non-deduction of TDS on payment made to the contractors for the labour contract work - Held that:- A mere production of the books of account or documents or other evidences is not sufficient for making assessment. If the Assessing officer is unable to examine those documents and to discover the understatement of income by relying on the same documents, the Assessing officer could re-open the assessment on the basis of fresh material which came to the knowledge of the Assessing officer that the income has escaped assessment. Therefore, merely because material lies embedded in the material or evidence produced by the assessee, which the Assessing officer could have uncovered but did not uncover is not a good ground to cancel the re-assessment proceedings. The Assessing officer could have found the truth, but he did not, does not preclude the Assessing officer from exercising the power of re- assessment to bring to tax the escaped income. In the present case, as seen from the reasons recorded, there is prima facie escapement of income. Hence, the Assessing officer after recording the reasons, issued notice to the assessee u/s. 148 of the Act.
TDS u/s 194C - non deduction of tds - nature of contract - Held that:- Chapter V of the Indian Contract Act treats certain relations resembling those created by a contract as contracts enforceable in law. The Indian Contract Act thus envisages four types of contracts, namely, (1) contracts made in writing, (2) contracts made orally, (3) contracts by implication or implied contracts and (4) quasi contracts. Thus, the contracts envisaged by section 194C are not limited to written contracts alone; they include oral contracts and implied contracts also. All payments made in pursuance of a contract irrespective of whether it is a written contract, oral contract, implied contract and quasi contract are well covered by section 194C of the Income Tax Act. The case of the assessee falls within the aforesaid parameters.
Provisions of sub-section (2) of section 194C also apply to an individual whose total sales, gross receipts or turnover from the business or profession carried on by him exceed the monetary limits specified under clause (a) or clause (b) of section 44AB during the relevant financial year. Total sales, gross receipts or turnover from the business or profession carried on by the assessee in the year under appeal exceed the monetary limits specified under clause (a) or clause (b) of section 44AB during the relevant financial year. Total sales, gross receipts or turnover from the business or profession carried on by the assessee in the year under appeal exceed the monetary limits specified under clause (a)or clause (b) of section 44AB. It is for this reason that the assessee has filed tax audit report as required by section 44AB. In this view of the matter, the provisions of section 194C(2) apply with equal force to him and the assessee is liable to deduct TDS on the impugned payment - Decided against assessee
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2014 (8) TMI 1068 - KARNATAKA HIGH COURT
Entitlement for deduction of deferred interest liability - Held that:- It is clear that the assessee in order to purchase food grains was getting government aid. However, they were claiming deductions of the interest proportionate to the food grains sold and in respect of the interest relatable to the food grains unsold was carried forward to next year and after the sale of food grains, deductions was claimed. This is the practice which was followed by the assessee. However, from 1985-86, they switched on to mercantile system of accounting. In that year, they claimed deductions of interest in respect of food grains which were sold and unsold and also the interest proportionate to the food grains sold which were of the previous year. There was no double claim. The authorities proceeded with an assumption that there is a double benefit claim. They also proceeded on the assumption that once mercantile system is adopted, the assessee looses the benefit of claiming deductions of interest which should have been claimed in the previous year.
The denial of the appellant’s claim by the authorities is not justifiable. The assessee is entitled to the benefit of claiming the said deductions relatable to the previous year i.e., for the assessment year 1985-86 - Decided in favour of the assessee
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2014 (8) TMI 1067 - SUPREME COURT
Condonation of delay in filing an appeal - prejudice that may be caused to other party - Held that:- We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by delaying a matter, evidence relating to the matter in dispute may disappear and very often the concerned party may think that preserving the relevant records would be unnecessary in view of the fact that there was no further proceeding. If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned.
Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation.
The Respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the Respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered. We, therefore, find total lack of bona -fides in its approach and the impugned order of the High Court in having condoned the delay in filing as well as refilling, of 9 days and 1727 days respectively, in a casual manner without giving any reason, much less acceptable reasons, cannot therefore be sustained. - Decided in favor of appellant.
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2014 (8) TMI 1066 - ITAT KOLKATA
Deemed dividend u/s. 2(22)(e) - Held that:- The assessee is holding registered shares to the tune of 10,99,300 in Mega Resources Ltd. and not 13,99,100 as alleged by the revenue. No doubt the total shareholding of the assessee in Mega Resources Ltd. is to the tune of 13,99,100 but registered shareholders are to the extent of 10,99,300. We have to see only the registered shareholding and not the beneficial shareholder. For this, the assessee has filed evidence before the lower authorities and even before us now. In such circumstances, this issue being covered by the Special Bench of this Tribunal, Mumbai Bench in the case of Bhaumik Colour P. Ltd.,[2008 (11) TMI 273 - ITAT BOMBAY-E ]. Respectfully following the same, we delete the addition and reverse the orders of the lower authorities. - Decided in favour of assessee.
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2014 (8) TMI 1065 - CESTAT BANGALORE
Omission to include the fact in the order that Matter remanded to original adjudicating authority - Commissioner (A) directed the claimant to file a request for extending the period of time for filing refund claim beyond six months and thereafter the matter should be decided - Held that:- it is appropriate that the matter should be remanded to original adjudicating authority by us at this stage itself. In our opinion, it is not necessary for the appellant to file separate request for extension of time for filing the refund claim and if the refund claim is being filed late, in the claim itself they can seek extension of time also and this can be considered by the original adjudicating authority. In any case, since the matter is being remanded, the claimant can file a separate request for extension of time and the original adjudicating authority shall proceed to decide the matter in accordance with the directions of the Commissioner (A).
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